Navigating the ADA in the Time of COVID-19

A look at compliance during the pandemic

Written by Allison C. Williams, Natalee Marion, and Kelli Fuqua

Employers face a variety of novel challenges when navigating disability laws as employees return to work (or continue working from home) during the COVID-19 pandemic,such as:

• Can employers implement temperature checks or ask employees questions about potential COVID-19 symptoms?

• What constitutes a reasonable accommodation during a pandemic?

• What obligations do employers have to their remote workforce?

• How can employers minimize any disparate impact to disabled or high-risk employees when making employment decisions during the pandemic?

This article explores compliance with the Americans with Disabilities Act, or ADA, during the COVID-19 pandemic. The ADA broadly prohibits private employers, state and local governments, employment agencies, and labor unions from discriminating against qualified individuals with disabilities in applying for jobs, hiring, firing, and job training.¹ The ADA still applies during the pandemic but it does not interfere with or prevent employers from following guidance from public health authorities.²

Taking Temperatures and Asking About Symptoms
Outside of the pandemic, the ADA only permits employers to make disability-related inquiries and require medical examinations if they are job-related and consistent with business necessity. However, because an individual with COVID-19 poses a direct threat to the health of others, an employer may take necessary steps to determine if employees entering the workplace have COVID-19. Consequently, an employer may choose to screen employees for COVID-19 symptoms when they return to work. This includes asking employees if they are experiencing symptoms of COVID-19, such as fever, chills, cough, shortness of breath, or sore throat to screen employees when returning to work.³ Many employers are choosing to have employees fill out written questionnaires upon arrival or respond to questions on phone applications regarding symptoms before they come to work; either option, or a combination, is acceptable—but beware of potential wage and hour pitfalls depending on the option you choose.

Employers may also take body temperatures when employees arrive to work, or have employees take their own temperatures prior to arrival.⁴ Employers should establish an objective cutoff for elevated temperature. If an employee is experiencing symptoms associated with COVID-19, or has a temperature that exceeds the established cutoff, that employee should be excluded from the workplace for the requisite time.

Requiring COVID-19 Testing
An employer may also choose to offer COVID-19 testing to employees before they enter the workplace.⁵ Employers should first ensure that the tests they are offering are accurate and reliable by consulting guidance from the Centers for Disease Control and Prevention or public health authorities. If an employee has a positive COVID-19 test, an employer may ask the employee to quarantine at home until released by his or her medical provider or local health provider.

Keeping Information Confidential
Any information gathered from a disability-related inquiry or medical examination, such as a temperature screening, work-related symptom questionnaires, employee statements regarding exposure, and health care provider notes, must be kept confidential and stored separately from the employee’s personnel file under the ADA. Although the temptation may be strong, employers must avoid sharing with other employees or clients personal identifying information regarding any employees who may have the virus or have been exposed to the virus. Employers should, however, disclose the name of an employee who is diagnosed with COVID-19 to a public health agency and provide enough information to other employees so that they may take proper precautions such as quarantining.⁶

Remaining Flexible is Critical
Although there are unique challenges engaging in the interactive process to determine reasonable accommodations during the pandemic, the fundamentals remain the same:

(1) communicate openly regarding the employee’s disability to identify potential accommodations;

(2) assess the effectiveness each potential accommodation would have in enabling the individual to perform the essential functions of the position; and

(3) select the accommodation that is most appropriate for both the employee and the employer.

Even during the pandemic, employers do not need to accommodate an employee if the accommodation would impose an “undue hardship” on the employer, which is defined as “an action requiring significant difficulty or expense.”⁷ Some accommodations that may not have posed an undue hardship pre-pandemic may pose one now. For example, the financial difficulties burdening many companies are a relevant consideration, as is the availability of discretionary funds.

Employers should fully evaluate low-cost solutions for employees whose disability may put them at greater risk for COVID-19, such as teleworking and mandating social-distancing protocols like spacing out work stations, directing foot traffic, or installing plexiglass boundaries. Employers may also require employees to engage in regular handwashing and to wear face coverings, with some exceptions.⁸ Get creative!

Given the uncertainty of the pandemic, and the occasional need for quick decisions, employers should also consider temporary accommodations, such as permitting telework, restructuring of marginal job duties, transfers to a different position, or modifying a schedule or shift assignment.⁹ Employers are permitted to set end dates for accommodations, such as “when the employee returns to the office” or “on September 1, 2020, the need for accommodation will be reevaluated.”¹⁰

Returning, Hiring, and Firing, Oh My!
Employers should take care to ensure that, in their attempts to engage in the interactive process or provide accommodations, they are not violating the ADA. For example, although local guidance may contemplate the protection of vulnerable populations, employers are not permitted to treat high-risk employees differently (such as by forcing them not to work, by delaying their return or start date, or by subjecting them to any other disparate treatment) just because they are part of the “vulnerable population.” If an employee in a higher-risk category has not requested an accommodation, the ADA does not mandate that the employer take action or initiate the interactive process themselves. Relatedly, employers should also take care to ensure that high-risk employees are not disparately impacted by furloughs, pay cuts, or layoffs. Engage with legal counsel to determine the proper impact-analysis method.

Engaging With the Teleworking Workforce
The increased prevalence of teleworking also presents employers with unique challenges in ADA compliance. If an accommodation request was pending prior to the employee teleworking, the employer should continue engaging with the employee virtually or telephonically to ensure that the accommodation is met and/or resolved prior to the employee’s return to work, if possible and needed. Similarly, employees may need additional or altered accommodations based on teleworking, such as certain equipment for working from home. The employer should continue to engage in the interactive process with employees to determine whether alternative or additional accommodations are necessary as the pandemic evolves.

Addressing COVID-19’s Effect on Mental Illness
Some employees may encounter more challenges due to the pandemic because of anxiety disorder, post-traumatic stress disorder, obsessive-compulsive disorder, or other mental illness. Employers should engage in the interactive process with these employees the same way they would with any other accommodation request. Employers should ask the employee questions to determine whether the condition they are experiencing qualifies as a disability under the ADA, including requesting medical documentation as necessary, and discuss potential accommodations that would enable the employee to continue performing his or her job.¹¹

Summing It Up
Considerations regarding the effects of the pandemic on the workplace, and particularly as to employees with disabilities, are constantly evolving. Employers should regularly reference local requirements, updated guidance from the Equal Employment Opportunity Commission, and their legal counsel to ensure they remain ADA compliant while navigating the unique effects of the pandemic. But the basics, at least as far as the ADA is concerned, remain the same: do not make choices, implement policies, or take actions regarding your workforce that would disparately impact persons with disabilities; protect health information regarding your workforce in accordance with the law; and communicate with employees with disabilities to navigate their needs. ^TBJ

Allison C. Williams is a shareholder in Littler Mendelson, where she represents and advises employers on all matters of labor and employment law in state and federal court. Her practice focuses on class and collective action wage and hour disputes as well as single-plaintiff discrimination, harassment, and retaliation claims. Williams may be reached at acwilliams@littler.com or 713-652-4729.

Natalee Marion is a former associate of Littler Mendelson.

Kelli Fuqua is an associate of Littler Mendelson, where she advises and defends clients in a variety of employment law matters, including discrimination, retaliation, harassment, whistleblower, and wage and hour matters. Her experience includes litigation in front of federal and state courts, as well as in the alternative dispute arena. Fuqua may be reached at kfuqua@littler.com or 512-982-7260.

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